Records of the 1980 Vienna Diplomatic Conference that pertain to this article

The Secretariat Commentary [closest counterpart to an Official
Commentary]

A match-up to the 1978 Draft [used to validate the Secretariat
Commentary]

Explanations of the proceedings reported in the cited UNCITRAL
Yearbooks

Antecedent legislation (ULIS and ULF) matched to this provision of the
CISG

The full text of the CISG and of antecedent legislation

Citations to Summary Records of the Vienna Diplomatic Conference

Background information: The Official Text of the CISG was created at the
1980 Vienna Diplomatic Conference.

Article 45 citations contained in the Official Records of the Vienna
Conference: Official Records of the United Nations Conference on Contracts
for the International Sale of Goods, Vienna 10 March-11 April 1980,
(hereinafter Official Records) A/CONF. 97/19 pp. 111, 209-210,
328, 427. These documents are reprinted in Honnold, Documentary History
of the Uniform Law for International Sales (Kluwer 1989) (hereinafter
Documentary History) pp. 683, 744-745, 549, 648. For electronic access to this material, go to Chronology of development of Article 45 at the 1980 Vienna Diplomatic Conference.

Data on the Secretariat Commentary

Background information: When the delegates to the Vienna Diplomatic
Conference met in 1980 to adopt the CISG, they considered a 1978 Draft
accompanied by a Secretariat Commentary on it. Much of that Commentary remains
relevant.

Priority of attention: The segment of the CISG W3 database that presents
citations to scholarly writings (the CISG
W3 bibliography) contains the
equivalent of over 250 single-spaced pages of citations to such writings on the
CISG. Faced with such a mass of material, priority of attention is imperative.

The reasons for priority of attention to the Secretariat Commentary are:

(I) it summarizes and explains relevant conclusions derived from the
legislative history of the Convention prior to the Vienna Conference;

(ii) it was used extensively by the delegates to this Conference as a guide to
the meaning of the provisions of the 1978 Draft they considered;

(iii) based on this Secretariat Commentary and their further deliberations, in
most cases the delegates approved these provisions of the 1978 Draft either
verbatim or substantially as written;

(iv) as an official document prepared pursuant to a resolution of the United
Nations General Assembly, the Secretariat Commentary is the closest available
equivalent of an Official Commentary on the Convention;

(v) also, like the Convention, it is obvious from its source and contents that
the Secretariat Commentary is not designed to favor legal interpretations
prevalent in any one legal system versus another.

Because of its credentials, when the Secretariat Commentary fits the Official
Text as well as the 1978 Draft, it is perhaps the most persuasive citation that
one can present to a tribunal called upon to interpret the Convention in any of
the many nations in which proceedings may be held.

Text of relevant Secretariat Commentary and caveats associated with its
use: The Secretariat Commentary is on the 1978 Draft of the CISG, not the
Official Text of this Convention. Prior to citing it, one should verify that
the article of the 1978 Draft considered by the UNCITRAL Secretariat is
substantively the same as its CISG counterpart. This is generally the case but
it is not always so. See
Article 45: 1978 Draft/Official Text,
for a match-up of this article of the 1978 Draft with the Official Text of the
CISG. The match-up is accompanied by editorial comments prepared for this
presentation.

Accessing the Secretariat Commentary: The text of the Secretariat
Commentary is presented in the Official Records of the Vienna Diplomatic
Conference at Official Records, pp. 14-66. A photo-offset copy of this text is
contained in Honnolds Documentary History, pp. 404-456. For electronic
access to the Secretariat Commentary applicable to this article, seeLegislative history of CISG article 45:
Secretariat Commentary.

Frame-of-reference problem: There is a frame-of-reference problem
associated with the official presentation of the Secretariat Commentary. The
numbering sequence of the articles cited in this Commentary is generally not
the same as the numbering sequence of the articles of the Official Text. This
can confuse researchers properly concerned with the CISGs frame of
reference.

Solution: The electronic access to the Secretariat Commentary contains
an added feature.

The CISG counterpart to each article of the 1978 Draft cited in the Secretariat
Commentary is identified in [brackets]. The basis for the comparative
article number in [brackets] is the Comparative table of the
numbering of the articles of the Convention contained in the Official
Records of the Vienna Diplomatic Conference. Section one of the electronic
presentation of the Secretariat Commentary contains a guide to the use of the
Secretariat Commentary; section two, the text of the Commentary accompanied by
editorial comments prepared for this presentation, where such comments appear
appropriate. This material is also in [brackets].

Additional legislative history data provided: About 85% of the time, the
delegates to the Vienna Conference approved verbatim (or substantially as
written) the provisions interpreted by the Secretariat Commentary. In the
other cases, the delegates often provided their own interpretation of the
modification made, i.e., an equivalent to a Secretariat Commentary on
these modifications. In many such cases, these delegate
commentaries are quoted in editorial comments provided in the
electronic access to the Secretariat Commentary.

Citations to UNCITRAL Yearbooks

Background information: The 1978 Draft and the Secretariat Commentary
that accompanied it were preceded by ten years of UNCITRAL deliberations. They
are recorded in UNCITRAL Yearbooks.

Problem: The UNCITRAL Yearbooks are not user-friendly because they are
not indexed. Also, the article numbering system changed many times prior to
the Vienna Diplomatic Conference. Absent a guide, locating relevant segments
of this legislative history can be difficult. Searching the Yearbooks for
material on this segment of the legislative history of the CISG is like
looking for a needle in a haystack (actually nine haystacks).
Also, some of the Yearbooks have at times been out of print.

Solution: Honnolds Documentary History makes most of this material
much more accessible. The Documentary History contains indexed and
cross-referenced photo-offset pages of the Yearbooks. The Documentary History
is the best path to this segment of the legislative history. Citations to it,
rather than the Yearbooks themselves, are presented below.

Caveat: There is, of course, a caveat associated with the use of this
element of the legislative history as well as any other element of the
legislative history of this or any other convention or statutory text. The
caveat is illustrated by a U.S. Supreme Court decision (on another subject) in
which the majority and the dissenting opinion quote from the same legislative
history to support opposing points of view. See Volkswagenwerk A.G. v.
Schlunk, 486 U.S. 694 (1988). Any legislative history must be used with
care. When so used, elements of the CISGs legislative history can at
times be quite helpful.

Additional data provided: Report on the manner in which over a ten-year
period (results summarized in the Secretariat Commentary), UNCITRAL matured the
text considered by the delegates to the 1980 Vienna Diplomatic Conference.
SeeUNCITRAL legislative history for a general explanation of the
progression of events recorded in the Yearbooks and the roles assigned to the
UNCITRAL Working Groups and Committees during the deliberations that led to the
1978 Draft of the CISG.

Data on the pre-UNCITRAL legislative history of the CISG

Background information: Certain concepts contained in the Hague
Formation and Sales Conventions of 1964 (ULF and ULIS) influenced the CISG.
The UNCITRAL Yearbook deliberations on the CISG commenced with the texts of
these conventions. Some CISG articles are similar to their ULIS-ULF
antecedents; some were changed. Where a Hague Convention concept was carried
forward, ULF and ULIS deliberations, commentaries, and case law can be relevant
to the proper interpretation of CISG provisions: hundreds of court decisions
were handed down on the ULF and ULIS Conventions and many commentaries were
written on those antecedents to the CISG.

An aid to determining whether interpretations of antecedents to the CISG can
be relevant to the interpretation of this article: SeeArticle
45: ULIS-ULF/CISG, for a match-up of ULF and ULIS provisions with this
article of the CISG. Citations to antecedents contained in the Secretariat
Commentary are the primary guide to this match-up of antecedents. European
commentators, particularly from Germany and the Netherlands, frequently refer
to such ULIS and ULF antecedents of the CISG.

Paths: The current paths to ULIS and ULF case law are primarily in
German or Dutch texts among the best of which is Internationale
Rechtsprechung zu EKG und EAG [International case law on ULIS and ULF --
in German], Schlechtriem & Magnus, eds. (Nomos, Baden-Baden 1987).
Over time, English translations of selected ULIS and ULF cases will be
presented in the CISG W3 database.

Caveat: Even where counterpart provisions appear similar or virtually
identical, a further verification is necessary prior to applying ULIS/ULF
concepts to the CISG. Each provision of each uniform law must be evaluated in
its own context, in the setting of the uniform law in which it is contained.
For this purpose, seefull text of CISG,
full text of ULIS
and full text of ULF.